CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org>; acct-staff@icann.org Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León
Hello Jonathan, A few comments inline and please note that i am speaking within the scope of names in relation to PTI (which is not the entire PTI scope) On Fri, Jan 22, 2016 at 1:33 PM, Jonathan Robinson <jrobinson@afilias.info> wrote:
All,
We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI.
Moreover, we have had input from Sidley via the Client Committee as follows:
*“Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.”*
So the essential question is:
A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient?
SO: First i like to say this scenario is really an extreme but since we are addressing extremes, I will try to attempt a response. I believe what is stated above should be sufficient. I really don't know what we mean by "ICANN fails to enforce the contract" if ICANN perhaps because PTI (is her baby) decides to close its eyes on some PTI's actions/inactions that violates contractual requirements, and after going through the escalation process (including access to an IRP by the customer) then it logically means the next level escalation will be triggered (which i believe is to call for an IFR). I don't think an independent IRP will further help resolves anything in that case.
OR
B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues?
There will be(/are) 3 main customers of PTI, in this case ICANN (representing names), numbers and protocol (even though the duo will contract directly with ICANN). If by "direct" we mean ccTLD and gTLD operators then i don't think it will make any difference on whether the IRP is separate from the one enabled by the bylaw. Each of such customers signed contract with ICANN and when PTI does not meet their expectation(after exhausting the escalation options set within PTI including that of the CSC), then the customer may take it up to the next level using the ICANN IRP. Overall, i think it will be neater and easier to use the first option unless there is a strong reason why the proposed CCWG IRP would not be able to meet up (perhaps on experience reasons) and i believe its consistent with the CWG requirement which i quote below: "....An appeal mechanism, for example in the form of an *Independent Review Panel*, for issues relating to the IANA functions. For example, direct customers with non-remediated issues or matters referred by ccNSO or GNSO after escalation by the CSC will have *access* to an Independent Review Panel........" Regards
If B above, what type of process is necessary?
As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response.
In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG).
Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, *by 23h59 UTC Monday 25 January 2016*.
Thank-you,
Jonathan & Lise
Co-chairs, CWG Stewardship
*From:* Alice Jansen [mailto:alice.jansen@icann.org] *Sent:* 21 January 2016 17:05 *To:* Lise Fuhr <Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info> *Cc:* Mathieu Weill <mathieu.weill@afnic.fr>; Thomas Rickert < thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org>; acct-staff@icann.org *Subject:* CCWG-ACCT Request for Guidance on PTI - IRP
*Sent on behalf of CCWG-Accountability Co-Chairs*
Dear Lise, Dear Jonathan,
This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.:
1. Provide direct access to IRP for PTI action or inaction;
2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP.
We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated.
We look forward to your guidance.
Thank you
Best regards
Mathieu, Thomas, León
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
On 22-Jan-16 08:52, Seun Ojedeji wrote:
A few comments inline and please note that i am speaking within the scope of names in relation to PTI (which is not the entire PTI scope)
I think this is overstated. Yes the PTI only deals with names directly. But for protocols and numbers, it relies on ICANN to deal with PTI. So how is ICANN supposed to protect the interests and appeals on behalf of its customers? Numbers and protocols want to be completely separate from PTI and rely on ICANN instead. i qustion the sanity of such an approach, but they are happy and trust ICANN so that is the way it is. But whether it is from the 'direct' customers of PTI or the 'indirect' customers such as users, registrants, protocols or numbers, we need for a way for such appeals to be made on our behalf, either by the CSC or by ICANN itself. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
On 22 Jan 2016 6:11 p.m., "Avri Doria" <avri@acm.org> wrote:
On 22-Jan-16 08:52, Seun Ojedeji wrote:
A few comments inline and please note that i am speaking within the scope of names in relation to PTI (which is not the entire PTI scope)
I think this is overstated. Yes the PTI only deals with names directly. But for protocols and numbers, it relies on ICANN to deal with PTI. So how is ICANN supposed to protect the interests and appeals on behalf of its customers? .........we need *for* a way for such appeals to be made on our behalf, either by the CSC or by ICANN itself.
SO: When you say "we/our behalf", who were you referring to? If that refers to CWG, yes I don't disagree with that as that is within the names scope. Numbers (and I believe protocol) have their way of reviewing and resolving any action/inaction of ICANN (PTI) as stipulated in their respective transition proposals(and subsequently the SLAs). I have no idea why numbers community customer will want to utilise the ICANN IRP as a result of PTI action/inaction as they have their process defined independently, and I expect same applies to protocol parameters as well. Secondly I have NO idea why ICANN as a corporation will want to use an IRP to compel PTI to comply PTI's action/inaction considering that ICANN is the only member of PTI and as such has (logical) control over it. I believe we should not loose the heart of the question which simply ask whether the ICANN IRP (as robustly proposed by CCWG) would be sufficient in a situation where ICANN keeps quite on PTI's action/inaction that violates the contractual obligations between ICANN and PTI. From a separate response you wrote, you seem to imply that it is possible to use the IRP if the scope is well defined in the bylaw (ref: So either we need a bylaw that covers all the conditions on which an appeal would be made). It therefore seem we are in agreement afterall. Regards
avri
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Hi, The issue is that the IRP can only act on the basis of a bylaw being infringed. So either we need a bylaw that covers all the conditions on which an appeal would be made, or an IRP that specifically made provision for IANA performance issues. We could also require a stand alone process that was separate from the IRP. avri On 22-Jan-16 07:33, Jonathan Robinson wrote:
So the essential question is:
A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient?
OR
B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues?
If B above, what type of process is necessary?
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Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote:
All,
We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI.
Moreover, we have had input from Sidley via the Client Committee as follows:
/“Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.”/
So the essential question is:
A.Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient?
OR
B.In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues?
If B above, what type of process is necessary?
As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response.
In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG).
Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, _by 23h59 UTC Monday 25 January 2016_.
Thank-you,
Jonathan & Lise
Co-chairs, CWG Stewardship
*From:*Alice Jansen [mailto:alice.jansen@icann.org] *Sent:* 21 January 2016 17:05 *To:* Lise Fuhr <Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info> *Cc:* Mathieu Weill <mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org>; acct-staff@icann.org *Subject:* CCWG-ACCT Request for Guidance on PTI - IRP
_Sent on behalf of CCWG-Accountability Co-Chairs_
Dear Lise, Dear Jonathan,
This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.:
1.Provide direct access to IRP for PTI action or inaction;
2.Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP.
We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated.
We look forward to your guidance.
Thank you
Best regards
Mathieu, Thomas, León
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org E: mshears@cdt.org | T: +44.771.247.2987 CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner. --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: "Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) - or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be - for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal." So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship's guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987 CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner. 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Thanks for the examples Chuck. If I may ask, considering that the examples you stated may have happened under the current arrangement, do you or any other person knows how such is resolved presently? secondly, is NTIA involved in any of the resolution process? Regards On Mon, Jan 25, 2016 at 2:49 PM, Gomes, Chuck <cgomes@verisign.com> wrote:
Let me give a few examples where I think that the IRP would be applicable:
1. A gTLD is not delegated as requested by a registry operator without appropriate justification.
2. Modification to a zone file record for a gTLD is not made without proper justification.
3. SLEs are not met after applicable procedures are followed.
I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy.
I suspect that others could come up with other examples.
Chuck
*From:* cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Matthew Shears *Sent:* Monday, January 25, 2016 8:14 AM *To:* jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate?
Matthew
On 22/01/2016 12:33, Jonathan Robinson wrote:
All,
We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI.
Moreover, we have had input from Sidley via the Client Committee as follows:
*“Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.”*
So the essential question is:
A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient?
OR
B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues?
If B above, what type of process is necessary?
As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response.
In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG).
Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, *by 23h59 UTC Monday 25 January 2016*.
Thank-you,
Jonathan & Lise
Co-chairs, CWG Stewardship
*From:* Alice Jansen [mailto:alice.jansen@icann.org <alice.jansen@icann.org>] *Sent:* 21 January 2016 17:05 *To:* Lise Fuhr <Fuhr@etno.eu> <Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info> <jrobinson@afilias.info> *Cc:* Mathieu Weill <mathieu.weill@afnic.fr> <mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net> <thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> <leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org> <grace.abuhamad@icann.org>; acct-staff@icann.org *Subject:* CCWG-ACCT Request for Guidance on PTI - IRP
*Sent on behalf of CCWG-Accountability Co-Chairs*
Dear Lise, Dear Jonathan,
This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.:
1. Provide direct access to IRP for PTI action or inaction;
2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP.
We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated.
We look forward to your guidance.
Thank you
Best regards
Mathieu, Thomas, León
_______________________________________________
CWG-Stewardship mailing list
CWG-Stewardship@icann.org
https://mm.icann.org/mailman/listinfo/cwg-stewardship
--
Matthew Shears | Director, Global Internet Policy & Human Rights Project
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
Under the current arrangements, we could try to enlist NTIA’s support if ICANN was unresponsive. Under the new gTLD registry agreements ICANN has fairly one-sided control. A reconsideration request could be filed but those have not been very effective. And the present IRP is too limited. Chuck From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, January 25, 2016 9:19 AM To: Gomes, Chuck Cc: Matthew Shears; jrobinson@afilias.info; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Thanks for the examples Chuck. If I may ask, considering that the examples you stated may have happened under the current arrangement, do you or any other person knows how such is resolved presently? secondly, is NTIA involved in any of the resolution process? Regards On Mon, Jan 25, 2016 at 2:49 PM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org>] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org<http://cdt.org> E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987<tel:%2B44.771.247.2987> CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner<http://cdt.org/annual-dinner>. [https://ipmcdn.avast.com/images/logo-avast-v1.png]<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=emailclient> This email has been sent from a virus-free computer protected by Avast. www.avast.com<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaig...> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> Bringing another down does not take you up - think about your action!
Hi, Another nagging question I have, and one I think people tell me I am wrong about becase of MOUs and contracts. In the PTI environment, given that ICANN remains the representative for 2 of the operational communities, and they resolve their IANA issues with ICANN based on contracts and MOUs, how do we expect ICANN to get what it needs from IANA on their behalf? Will, as today. they just tell IANA what to do and that will be the end of it. The other OCs have indicated that any appeals mechanisms we create are irrelevant to their case - they have their own methods. But these methods involve ICANN and not PTI. Does ICANN need to appeal on their behalf? How does it do this? avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Presumably if ICANN has an obligation in its Bylaws to ensure that PTI does the right thing, it will need to create the necessary enforcement mechanisms in its relationship with PTI. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 1/25/16, 10:30 AM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Another nagging question I have, and one I think people tell me I am wrong about becase of MOUs and contracts.
In the PTI environment, given that ICANN remains the representative for 2 of the operational communities, and they resolve their IANA issues with ICANN based on contracts and MOUs, how do we expect ICANN to get what it needs from IANA on their behalf?
Will, as today. they just tell IANA what to do and that will be the end of it.
The other OCs have indicated that any appeals mechanisms we create are irrelevant to their case - they have their own methods. But these methods involve ICANN and not PTI. Does ICANN need to appeal on their behalf? How does it do this?
avri
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Becky, have we specified that there should be such a provision in the Bylaws? I guess we have left to "implementation" the agreement between ICANN and PTI. I don't believe this has been picked up yet. Am I correct? If so, that should probably change soon. Greg On Mon, Jan 25, 2016 at 10:45 AM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Presumably if ICANN has an obligation in its Bylaws to ensure that PTI does the right thing, it will need to create the necessary enforcement mechanisms in its relationship with PTI.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 1/25/16, 10:30 AM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Another nagging question I have, and one I think people tell me I am wrong about becase of MOUs and contracts.
In the PTI environment, given that ICANN remains the representative for 2 of the operational communities, and they resolve their IANA issues with ICANN based on contracts and MOUs, how do we expect ICANN to get what it needs from IANA on their behalf?
Will, as today. they just tell IANA what to do and that will be the end of it.
The other OCs have indicated that any appeals mechanisms we create are irrelevant to their case - they have their own methods. But these methods involve ICANN and not PTI. Does ICANN need to appeal on their behalf? How does it do this?
avri
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My impression based on the various posts is that we need both a general provision regarding ICANN’s obligation to cause the PTI to fulfill its obligations (the failure to do so would give rise to a standard IRP) and we need something to address SLA failures, etc. with a operational (rather than constitutional) standard of review. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, January 25, 2016 at 3:22 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Becky, have we specified that there should be such a provision in the Bylaws? I guess we have left to "implementation" the agreement between ICANN and PTI. I don't believe this has been picked up yet. Am I correct? If so, that should probably change soon. Greg On Mon, Jan 25, 2016 at 10:45 AM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Presumably if ICANN has an obligation in its Bylaws to ensure that PTI does the right thing, it will need to create the necessary enforcement mechanisms in its relationship with PTI. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz> On 1/25/16, 10:30 AM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
Another nagging question I have, and one I think people tell me I am wrong about becase of MOUs and contracts.
In the PTI environment, given that ICANN remains the representative for 2 of the operational communities, and they resolve their IANA issues with ICANN based on contracts and MOUs, how do we expect ICANN to get what it needs from IANA on their behalf?
Will, as today. they just tell IANA what to do and that will be the end of it.
The other OCs have indicated that any appeals mechanisms we create are irrelevant to their case - they have their own methods. But these methods involve ICANN and not PTI. Does ICANN need to appeal on their behalf? How does it do this?
avri
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Becky, That is my impression as well. Greg On Mon, Jan 25, 2016 at 4:05 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
My impression based on the various posts is that we need both a general provision regarding ICANN’s obligation to cause the PTI to fulfill its obligations (the failure to do so would give rise to a standard IRP) and we need something to address SLA failures, etc. with a operational (rather than constitutional) standard of review.
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367 */* *neustar.biz* <http://www.neustar.biz>
From: Greg Shatan <gregshatanipc@gmail.com> Date: Monday, January 25, 2016 at 3:22 PM To: Becky Burr <becky.burr@neustar.biz> Cc: "avri@acm.org" <avri@acm.org>, "cwg-stewardship@icann.org" < cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Becky,
have we specified that there should be such a provision in the Bylaws?
I guess we have left to "implementation" the agreement between ICANN and PTI. I don't believe this has been picked up yet. Am I correct? If so, that should probably change soon.
Greg
On Mon, Jan 25, 2016 at 10:45 AM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Presumably if ICANN has an obligation in its Bylaws to ensure that PTI does the right thing, it will need to create the necessary enforcement mechanisms in its relationship with PTI.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 1/25/16, 10:30 AM, "Avri Doria" <avri@acm.org> wrote:
Hi,
Another nagging question I have, and one I think people tell me I am wrong about becase of MOUs and contracts.
In the PTI environment, given that ICANN remains the representative for 2 of the operational communities, and they resolve their IANA issues with ICANN based on contracts and MOUs, how do we expect ICANN to get what it needs from IANA on their behalf?
Will, as today. they just tell IANA what to do and that will be the end of it.
The other OCs have indicated that any appeals mechanisms we create are irrelevant to their case - they have their own methods. But these methods involve ICANN and not PTI. Does ICANN need to appeal on their behalf? How does it do this?
avri
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This is an interesting question. Para 107 says: /This final proposal attempts to meet all of the above requirements by://... //Establishing a contract between PTI and ICANN that will grant PTI the rights to act as the IFO, and set out the rights and obligations of PTI and ICANN/* * Could/should the concerns raised by Becky and Greg be addressed in the "rights and obligations" part of the contract outlined above, and if so does the Draft Proposed Term Sheet in Annex S adequately account for the concerns raised in this thread? (My cursory read suggests that it does not.) Matthew On 26/01/2016 04:17, Greg Shatan wrote:
Becky,
That is my impression as well.
Greg
On Mon, Jan 25, 2016 at 4:05 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
My impression based on the various posts is that we need both a general provision regarding ICANN’s obligation to cause the PTI to fulfill its obligations (the failure to do so would give rise to a standard IRP) and we need something to address SLA failures, etc. with a operational (rather than constitutional) standard of review.
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:***+1.202.533.2932 <tel:%2B1.202.533.2932> *Mobile:***+1.202.352.6367 <tel:%2B1.202.352.6367> */**neustar.biz* <http://www.neustar.biz>
From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> Date: Monday, January 25, 2016 at 3:22 PM To: Becky Burr <becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> Cc: "avri@acm.org" <avri@acm.org>, "cwg-stewardship@icann.org" <cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Becky,
have we specified that there should be such a provision in the Bylaws?
I guess we have left to "implementation" the agreement between ICANN and PTI. I don't believe this has been picked up yet. Am I correct? If so, that should probably change soon.
Greg
On Mon, Jan 25, 2016 at 10:45 AM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
Presumably if ICANN has an obligation in its Bylaws to ensure that PTI does the right thing, it will need to create the necessary enforcement mechanisms in its relationship with PTI.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / neustar.biz <http://neustar.biz> <http://www.neustar.biz>
On 1/25/16, 10:30 AM, "Avri Doria" <avri@acm.org> wrote:
>Hi, > >Another nagging question I have, and one I think people tell me I am >wrong about becase of MOUs and contracts. > >In the PTI environment, given that ICANN remains the representative for >2 of the operational communities, and they resolve their IANA issues >with ICANN based on contracts and MOUs, how do we expect ICANN to get >what it needs from IANA on their behalf? > >Will, as today. they just tell IANA what to do and that will be the end >of it. > >The other OCs have indicated that any appeals mechanisms we create are >irrelevant to their case - they have their own methods. But these >methods involve ICANN and not PTI. Does ICANN need to appeal on their >behalf? How does it do this? > >avri > >--- >This email has been checked for viruses by Avast antivirus software. >https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_antivir >us&d=CwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8 >WDDkMr4k&m=sNRRTgQciMa9L6cxsRmapxpj1FEfitYPlAMn4NmB4Gk&s=VjHS6O9uycnwTVSFP >XRCBB11R2TBkKIwjKy1wEj8MaU&e= > >_______________________________________________ >CWG-Stewardship mailing list >CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> >https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ >listinfo_cwg-2Dstewardship&d=CwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6 >X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=sNRRTgQciMa9L6cxsRmapxpj1FEfitYPlAMn4Nm >B4Gk&s=0HwgSD_DtHwhuq9QOacLroSh0USPJ_sMNZMCTVHGh78&e=
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It doesn’t seem to me that that should be hard to fix and the timing is perfect because we are currently working on the draft Bylaws changes. Chuck From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Tuesday, January 26, 2016 6:51 AM To: Greg Shatan; Burr, Becky Cc: avri@acm.org; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 This is an interesting question. Para 107 says: This final proposal attempts to meet all of the above requirements by: ... Establishing a contract between PTI and ICANN that will grant PTI the rights to act as the IFO, and set out the rights and obligations of PTI and ICANN Could/should the concerns raised by Becky and Greg be addressed in the "rights and obligations" part of the contract outlined above, and if so does the Draft Proposed Term Sheet in Annex S adequately account for the concerns raised in this thread? (My cursory read suggests that it does not.) Matthew On 26/01/2016 04:17, Greg Shatan wrote: Becky, That is my impression as well. Greg On Mon, Jan 25, 2016 at 4:05 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: My impression based on the various posts is that we need both a general provision regarding ICANN’s obligation to cause the PTI to fulfill its obligations (the failure to do so would give rise to a standard IRP) and we need something to address SLA failures, etc. with a operational (rather than constitutional) standard of review. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday, January 25, 2016 at 3:22 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Becky, have we specified that there should be such a provision in the Bylaws? I guess we have left to "implementation" the agreement between ICANN and PTI. I don't believe this has been picked up yet. Am I correct? If so, that should probably change soon. Greg On Mon, Jan 25, 2016 at 10:45 AM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Presumably if ICANN has an obligation in its Bylaws to ensure that PTI does the right thing, it will need to create the necessary enforcement mechanisms in its relationship with PTI. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://neustar.biz> <http://www.neustar.biz> On 1/25/16, 10:30 AM, "Avri Doria" <avri@acm.org<mailto:avri@acm.org>> wrote:
Hi,
Another nagging question I have, and one I think people tell me I am wrong about becase of MOUs and contracts.
In the PTI environment, given that ICANN remains the representative for 2 of the operational communities, and they resolve their IANA issues with ICANN based on contracts and MOUs, how do we expect ICANN to get what it needs from IANA on their behalf?
Will, as today. they just tell IANA what to do and that will be the end of it.
The other OCs have indicated that any appeals mechanisms we create are irrelevant to their case - they have their own methods. But these methods involve ICANN and not PTI. Does ICANN need to appeal on their behalf? How does it do this?
avri
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On the point highlighted below by Becky and supported by Greg i.e. that both would be desirable, Lise & had the opportunity to discuss this briefly. To do both does seem to us to cover the bases well and so it appears optimal, assuming the CCWG can work with this i.e. it is a practical outcome for the CCWG. Agreed that the timing is good both in terms of the CCWG meeting later today and the current work on bylaws. Thanks, Jonathan From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: 26 January 2016 14:06 To: Matthew Shears <mshears@cdt.org>; Greg Shatan <gregshatanipc@gmail.com>; Burr, Becky <Becky.Burr@neustar.biz> Cc: avri@acm.org; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 It doesn’t seem to me that that should be hard to fix and the timing is perfect because we are currently working on the draft Bylaws changes. Chuck From: cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Tuesday, January 26, 2016 6:51 AM To: Greg Shatan; Burr, Becky Cc: avri@acm.org <mailto:avri@acm.org> ; cwg-stewardship@icann.org <mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 This is an interesting question. Para 107 says: This final proposal attempts to meet all of the above requirements by: ... Establishing a contract between PTI and ICANN that will grant PTI the rights to act as the IFO, and set out the rights and obligations of PTI and ICANN Could/should the concerns raised by Becky and Greg be addressed in the "rights and obligations" part of the contract outlined above, and if so does the Draft Proposed Term Sheet in Annex S adequately account for the concerns raised in this thread? (My cursory read suggests that it does not.) Matthew On 26/01/2016 04:17, Greg Shatan wrote: Becky, That is my impression as well. Greg On Mon, Jan 25, 2016 at 4:05 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > wrote: My impression based on the various posts is that we need both a general provision regarding ICANN’s obligation to cause the PTI to fulfill its obligations (the failure to do so would give rise to a standard IRP) and we need something to address SLA failures, etc. with a operational (rather than constitutional) standard of review. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / <http://www.neustar.biz> neustar.biz From: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Date: Monday, January 25, 2016 at 3:22 PM To: Becky Burr <becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > Cc: "avri@acm.org <mailto:avri@acm.org> " <avri@acm.org <mailto:avri@acm.org> >, "cwg-stewardship@icann.org <mailto:cwg-stewardship@icann.org> " <cwg-stewardship@icann.org <mailto:cwg-stewardship@icann.org> > Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Becky, have we specified that there should be such a provision in the Bylaws? I guess we have left to "implementation" the agreement between ICANN and PTI. I don't believe this has been picked up yet. Am I correct? If so, that should probably change soon. Greg On Mon, Jan 25, 2016 at 10:45 AM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > wrote: Presumably if ICANN has an obligation in its Bylaws to ensure that PTI does the right thing, it will need to create the necessary enforcement mechanisms in its relationship with PTI. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / neustar.biz <http://neustar.biz> <http://www.neustar.biz> On 1/25/16, 10:30 AM, "Avri Doria" <avri@acm.org <mailto:avri@acm.org> > wrote:
Hi,
Another nagging question I have, and one I think people tell me I am wrong about becase of MOUs and contracts.
In the PTI environment, given that ICANN remains the representative for 2 of the operational communities, and they resolve their IANA issues with ICANN based on contracts and MOUs, how do we expect ICANN to get what it needs from IANA on their behalf?
Will, as today. they just tell IANA what to do and that will be the end of it.
The other OCs have indicated that any appeals mechanisms we create are irrelevant to their case - they have their own methods. But these methods involve ICANN and not PTI. Does ICANN need to appeal on their behalf? How does it do this?
avri
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Currently: 1. The aggrieved registry operator may or may not have a cause of action for IRP or litigation, depends a lot on the circumstances 2. No direct resolution path that I am aware of for ccTLDs. With gTLDs, it depends on circumstances but contractual arbitration provision could kick in 3. SLEs in IANA Functions Contract are between ICANN and NTIA, not sure what recourse any affected registry operator would have. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Monday, January 25, 2016 at 9:19 AM To: Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Thanks for the examples Chuck. If I may ask, considering that the examples you stated may have happened under the current arrangement, do you or any other person knows how such is resolved presently? secondly, is NTIA involved in any of the resolution process? Regards On Mon, Jan 25, 2016 at 2:49 PM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org>] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_cwg-2Dstewardship&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NnG6eny0oQaGz3iCqBwwlgeeC46xQbGu0Dp3_V8C35s&s=OR603kQHhn40RkVrYwPohLtx7A5rmwYr8TIhhVb6_vA&e=> -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__cdt.org&d=CwMFaQ&c=MOptN...> E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987<tel:%2B44.771.247.2987> CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner<https://urldefense.proofpoint.com/v2/url?u=http-3A__cdt.org_annual-2Ddinner&...>. [https://ipmcdn.avast.com/images/logo-avast-v1.png]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_sig-2Demail-3Futm-5Fmedium-3Demail-26utm-5Fsource-3Dlink-26utm-5Fcampaign-3Dsig-2Demail-26utm-5Fcontent-3Demailclient&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NnG6eny0oQaGz3iCqBwwlgeeC46xQbGu0Dp3_V8C35s&s=sZu9jN2OHyRtZtumWCg0zdJ4LnX2Acy_NnypKeAoRUM&e=> This email has been sent from a virus-free computer protected by Avast. www.avast.com<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_sig-2Dema...> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_cwg-2Dstewardship&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NnG6eny0oQaGz3iCqBwwlgeeC46xQbGu0Dp3_V8C35s&s=OR603kQHhn40RkVrYwPohLtx7A5rmwYr8TIhhVb6_vA&e=> -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NnG6eny0oQaGz3iCqBwwlgeeC46xQbGu0Dp3_V8C35s&s=KR7KFpFVoBq6KL0t3KxtuszRynyZDL72MeEUBlPzrvk&e=> Mobile: +2348035233535 alt email:<https://urldefense.proofpoint.com/v2/url?u=http-3A__goog-5F1872880453&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NnG6eny0oQaGz3iCqBwwlgeeC46xQbGu0Dp3_V8C35s&s=8bjRiYRNGoYs8dxi79lnRkDFNVhRYCbaIdA3E-ovU4Y&e=>seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> Bringing another down does not take you up - think about your action!
Okay thanks, what I hear from both Chuck and Becky is that; apart from the SLE/A between ICANN and NTIA, there is "no" significant NTIA involvement on this matter. The current IRP as indicated by Chuck is weak, and that is one of the major aspect of the ccwg proposal(re: strengthening the IRP). I believe the scope of the CWG should as much as possible address the role of NTIA and not try to fix problems that are IMO not within the remit of CWG.(re: Chuck: Under the new gTLD registry agreements ICANN has fairly one-sided control.) The CWG in her proposal indicated that access to IRP be made possible and I am of the opinion that it should be based on the existing IRP (improved version of CCWG). Regards On 25 Jan 2016 16:39, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
Currently:
1. The aggrieved registry operator may or may not have a cause of action for IRP or litigation, depends a lot on the circumstances 2. No direct resolution path that I am aware of for ccTLDs. With gTLDs, it depends on circumstances but contractual arbitration provision could kick in 3. SLEs in IANA Functions Contract are between ICANN and NTIA, not sure what recourse any affected registry operator would have.
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367 */* *neustar.biz* <http://www.neustar.biz>
From: Seun Ojedeji <seun.ojedeji@gmail.com> Date: Monday, January 25, 2016 at 9:19 AM To: Chuck Gomes <cgomes@verisign.com> Cc: "cwg-stewardship@icann.org" <cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Thanks for the examples Chuck. If I may ask, considering that the examples you stated may have happened under the current arrangement, do you or any other person knows how such is resolved presently? secondly, is NTIA involved in any of the resolution process?
Regards
On Mon, Jan 25, 2016 at 2:49 PM, Gomes, Chuck <cgomes@verisign.com> wrote:
Let me give a few examples where I think that the IRP would be applicable:
1. A gTLD is not delegated as requested by a registry operator without appropriate justification.
2. Modification to a zone file record for a gTLD is not made without proper justification.
3. SLEs are not met after applicable procedures are followed.
I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy.
I suspect that others could come up with other examples.
Chuck
*From:*cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Matthew Shears *Sent:* Monday, January 25, 2016 8:14 AM *To:* jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate?
Matthew
On 22/01/2016 12:33, Jonathan Robinson wrote:
All,
We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI.
Moreover, we have had input from Sidley via the Client Committee as follows:
*“Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.”*
So the essential question is:
A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient?
OR
B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues?
If B above, what type of process is necessary?
As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response.
In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG).
Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, *by 23h59 UTC Monday 25 January 2016*.
Thank-you,
Jonathan & Lise
Co-chairs, CWG Stewardship
*From:* Alice Jansen [mailto:alice.jansen@icann.org <alice.jansen@icann.org>] *Sent:* 21 January 2016 17:05 *To:* Lise Fuhr <Fuhr@etno.eu> <Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info> <jrobinson@afilias.info> *Cc:* Mathieu Weill <mathieu.weill@afnic.fr> <mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net> <thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> <leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org> <grace.abuhamad@icann.org>; acct-staff@icann.org *Subject:* CCWG-ACCT Request for Guidance on PTI - IRP
*Sent on behalf of CCWG-Accountability Co-Chairs*
Dear Lise, Dear Jonathan,
This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.:
1. Provide direct access to IRP for PTI action or inaction;
2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP.
We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated.
We look forward to your guidance.
Thank you
Best regards
Mathieu, Thomas, León
_______________________________________________
CWG-Stewardship mailing list
CWG-Stewardship@icann.org
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*Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=CwMFa...> Mobile: +2348035233535 **alt email: <https://urldefense.proofpoint.com/v2/url?u=http-3A__goog-5F1872880453&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NnG6eny0oQaGz3iCqBwwlgeeC46xQbGu0Dp3_V8C35s&s=8bjRiYRNGoYs8dxi79lnRkDFNVhRYCbaIdA3E-ovU4Y&e=>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
Bringing another down does not take you up - think about your action!
For the gTLDs, I'm afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I'll get there one day... On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the "bylaw test," an IRP against ICANN would seem to be appropriate. But there might be other reasons - community objections, or GAC opposition or even failure to meet the criteria. So wouldn't "might be applicable" be correct here? On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I'm with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more "resolution-based" CSC to the more legalistic IRP. And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult. For 3: this would seem to me to be a CSC issue - that's what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract). For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days). Imagine PTI decides it wants to impose a contract on all its "customers" (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum. Happy to hear thoughts. Martin From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: 25 January 2016 13:50 To: Matthew Shears <mshears@cdt.org>; jrobinson@afilias.info; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: "Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) - or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be - for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal." So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship's guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987 CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner. 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Thanks for responding Martin. Please see my responses below. Chuck From: Martin Boyle [mailto:Martin.Boyle@nominet.uk] Sent: Monday, January 25, 2016 7:41 PM To: Gomes, Chuck; Matthew Shears; jrobinson@afilias.info; cwg-stewardship@icann.org Subject: RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 For the gTLDs, I'm afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I'll get there one day... On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the "bylaw test," an IRP against ICANN would seem to be appropriate. But there might be other reasons - community objections, or GAC opposition or even failure to meet the criteria. So wouldn't "might be applicable" be correct here? [Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy. On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I'm with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more "resolution-based" CSC to the more legalistic IRP. [Chuck Gomes] No argument here. And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult. For 3: this would seem to me to be a CSC issue - that's what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract). [Chuck Gomes] What if CSC cannot resolve the problem? For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days). [Chuck Gomes] Agreed. Imagine PTI decides it wants to impose a contract on all its "customers" (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum. [Chuck Gomes] Agreed again. Happy to hear thoughts. Martin From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: 25 January 2016 13:50 To: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: "Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) - or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be - for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal." So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship's guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987 CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner. 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Martin and Chuck, Please allow me to add my 2 cents below. Greg On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes@verisign.com> wrote:
Thanks for responding Martin. Please see my responses below.
Chuck
*From:* Martin Boyle [mailto:Martin.Boyle@nominet.uk] *Sent:* Monday, January 25, 2016 7:41 PM *To:* Gomes, Chuck; Matthew Shears; jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
For the gTLDs, I’m afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I’ll get there one day…
On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the “bylaw test,” an IRP against ICANN would seem to be appropriate. But there might be other reasons – community objections, or GAC opposition or even failure to meet the criteria. So wouldn’t “might be applicable” be correct here?
*[Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy.*
This does not seem like a "PTI" issue. Rather this is an ICANN issue. So it is not really relevant to this question (although it's an interesting question). Now if ICANN approved the application and entered into a registry agreement, but PTI refused to delegate, then it would be a PTI problem, and the applicant could try to resolve this through CSC or through ICANN's enforcement of its contract with PTI. If CSC does not succeed, what is the end of the line for resolving a performance problem? Is it an IRP, and is the other party in the IRP PTI or ICANN?
On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I’m with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more “resolution-based” CSC to the more legalistic IRP.
*[Chuck Gomes] No argument here.*
As with the above issue, if CSC cannot resolve the issue, the next step after that should be an IRP (but not based on ICANN violating a bylaw; rather it should be based on PTI's failure to do what is required of it). A special IFR (and possibly an RfP) based on a single failure to delegate seems like overkill to me. I do agree that the IRP should not be invoked until the CSC route has run its course.
And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult.
For 3: this would seem to me to be a CSC issue – that’s what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract).
*[Chuck Gomes] What if CSC cannot resolve the problem?*
For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days).
*[Chuck Gomes] Agreed.*
Imagine PTI decides it wants to impose a contract on all its “customers” (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum.
*[Chuck Gomes] Agreed again.*
Happy to hear thoughts.
Martin
*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Gomes, Chuck *Sent:* 25 January 2016 13:50 *To:* Matthew Shears <mshears@cdt.org>; jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Let me give a few examples where I think that the IRP would be applicable:
1. A gTLD is not delegated as requested by a registry operator without appropriate justification.
2. Modification to a zone file record for a gTLD is not made without proper justification.
3. SLEs are not met after applicable procedures are followed.
I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy.
I suspect that others could come up with other examples.
Chuck
*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Matthew Shears *Sent:* Monday, January 25, 2016 8:14 AM *To:* jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate?
Matthew
On 22/01/2016 12:33, Jonathan Robinson wrote:
All,
We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI.
Moreover, we have had input from Sidley via the Client Committee as follows:
*“Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.”*
So the essential question is:
A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient?
OR
B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues?
If B above, what type of process is necessary?
As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response.
In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG).
Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, *by 23h59 UTC Monday 25 January 2016*.
Thank-you,
Jonathan & Lise
Co-chairs, CWG Stewardship
*From:* Alice Jansen [mailto:alice.jansen@icann.org <alice.jansen@icann.org>] *Sent:* 21 January 2016 17:05 *To:* Lise Fuhr <Fuhr@etno.eu> <Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info> <jrobinson@afilias.info> *Cc:* Mathieu Weill <mathieu.weill@afnic.fr> <mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net> <thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> <leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org> <grace.abuhamad@icann.org>; acct-staff@icann.org *Subject:* CCWG-ACCT Request for Guidance on PTI - IRP
*Sent on behalf of CCWG-Accountability Co-Chairs*
Dear Lise, Dear Jonathan,
This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.:
1. Provide direct access to IRP for PTI action or inaction;
2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP.
We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated.
We look forward to your guidance.
Thank you
Best regards
Mathieu, Thomas, León
_______________________________________________
CWG-Stewardship mailing list
CWG-Stewardship@icann.org
https://mm.icann.org/mailman/listinfo/cwg-stewardship
--
Matthew Shears | Director, Global Internet Policy & Human Rights Project
Center for Democracy & Technology | cdt.org
E: mshears@cdt.org | T: +44.771.247.2987
CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner.
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Good feedback Greg. What do you mean by RfP in the parenthetical after Special IFR? Chuck From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Monday, January 25, 2016 11:36 PM To: Gomes, Chuck Cc: Martin Boyle; Matthew Shears; jrobinson@afilias.info; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Martin and Chuck, Please allow me to add my 2 cents below. Greg On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Thanks for responding Martin. Please see my responses below. Chuck From: Martin Boyle [mailto:Martin.Boyle@nominet.uk<mailto:Martin.Boyle@nominet.uk>] Sent: Monday, January 25, 2016 7:41 PM To: Gomes, Chuck; Matthew Shears; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 For the gTLDs, I’m afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I’ll get there one day… On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the “bylaw test,” an IRP against ICANN would seem to be appropriate. But there might be other reasons – community objections, or GAC opposition or even failure to meet the criteria. So wouldn’t “might be applicable” be correct here? [Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy. This does not seem like a "PTI" issue. Rather this is an ICANN issue. So it is not really relevant to this question (although it's an interesting question). Now if ICANN approved the application and entered into a registry agreement, but PTI refused to delegate, then it would be a PTI problem, and the applicant could try to resolve this through CSC or through ICANN's enforcement of its contract with PTI. If CSC does not succeed, what is the end of the line for resolving a performance problem? Is it an IRP, and is the other party in the IRP PTI or ICANN? On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I’m with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more “resolution-based” CSC to the more legalistic IRP. [Chuck Gomes] No argument here. As with the above issue, if CSC cannot resolve the issue, the next step after that should be an IRP (but not based on ICANN violating a bylaw; rather it should be based on PTI's failure to do what is required of it). A special IFR (and possibly an RfP) based on a single failure to delegate seems like overkill to me. I do agree that the IRP should not be invoked until the CSC route has run its course. And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult. For 3: this would seem to me to be a CSC issue – that’s what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract). [Chuck Gomes] What if CSC cannot resolve the problem? For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days). [Chuck Gomes] Agreed. Imagine PTI decides it wants to impose a contract on all its “customers” (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum. [Chuck Gomes] Agreed again. Happy to hear thoughts. Martin From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: 25 January 2016 13:50 To: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org<http://cdt.org> E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987<tel:%2B44.771.247.2987> CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner<http://cdt.org/annual-dinner>. [https://ipmcdn.avast.com/images/logo-avast-v1.png]<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=emailclient> This email has been sent from a virus-free computer protected by Avast. www.avast.com<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaig...> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
Request for Proposal (for new IFO). On Tue, Jan 26, 2016 at 9:27 AM, Gomes, Chuck <cgomes@verisign.com> wrote:
Good feedback Greg. What do you mean by RfP in the parenthetical after Special IFR?
Chuck
*From:* Greg Shatan [mailto:gregshatanipc@gmail.com] *Sent:* Monday, January 25, 2016 11:36 PM *To:* Gomes, Chuck *Cc:* Martin Boyle; Matthew Shears; jrobinson@afilias.info; cwg-stewardship@icann.org
*Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Martin and Chuck,
Please allow me to add my 2 cents below.
Greg
On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes@verisign.com> wrote:
Thanks for responding Martin. Please see my responses below.
Chuck
*From:* Martin Boyle [mailto:Martin.Boyle@nominet.uk] *Sent:* Monday, January 25, 2016 7:41 PM *To:* Gomes, Chuck; Matthew Shears; jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
For the gTLDs, I’m afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I’ll get there one day…
On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the “bylaw test,” an IRP against ICANN would seem to be appropriate. But there might be other reasons – community objections, or GAC opposition or even failure to meet the criteria. So wouldn’t “might be applicable” be correct here?
*[Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy.*
This does not seem like a "PTI" issue. Rather this is an ICANN issue. So it is not really relevant to this question (although it's an interesting question). Now if ICANN approved the application and entered into a registry agreement, but PTI refused to delegate, then it would be a PTI problem, and the applicant could try to resolve this through CSC or through ICANN's enforcement of its contract with PTI. If CSC does not succeed, what is the end of the line for resolving a performance problem? Is it an IRP, and is the other party in the IRP PTI or ICANN?
On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I’m with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more “resolution-based” CSC to the more legalistic IRP.
*[Chuck Gomes] No argument here.*
As with the above issue, if CSC cannot resolve the issue, the next step after that should be an IRP (but not based on ICANN violating a bylaw; rather it should be based on PTI's failure to do what is required of it). A special IFR (and possibly an RfP) based on a single failure to delegate seems like overkill to me. I do agree that the IRP should not be invoked until the CSC route has run its course.
And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult.
For 3: this would seem to me to be a CSC issue – that’s what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract).
*[Chuck Gomes] What if CSC cannot resolve the problem?*
For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days).
*[Chuck Gomes] Agreed.*
Imagine PTI decides it wants to impose a contract on all its “customers” (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum.
*[Chuck Gomes] Agreed again.*
Happy to hear thoughts.
Martin
*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Gomes, Chuck *Sent:* 25 January 2016 13:50 *To:* Matthew Shears <mshears@cdt.org>; jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Let me give a few examples where I think that the IRP would be applicable:
1. A gTLD is not delegated as requested by a registry operator without appropriate justification.
2. Modification to a zone file record for a gTLD is not made without proper justification.
3. SLEs are not met after applicable procedures are followed.
I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy.
I suspect that others could come up with other examples.
Chuck
*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Matthew Shears *Sent:* Monday, January 25, 2016 8:14 AM *To:* jrobinson@afilias.info; cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016
Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate?
Matthew
On 22/01/2016 12:33, Jonathan Robinson wrote:
All,
We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI.
Moreover, we have had input from Sidley via the Client Committee as follows:
*“Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.”*
So the essential question is:
A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient?
OR
B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues?
If B above, what type of process is necessary?
As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response.
In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG).
Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, *by 23h59 UTC Monday 25 January 2016*.
Thank-you,
Jonathan & Lise
Co-chairs, CWG Stewardship
*From:* Alice Jansen [mailto:alice.jansen@icann.org <alice.jansen@icann.org>] *Sent:* 21 January 2016 17:05 *To:* Lise Fuhr <Fuhr@etno.eu> <Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info> <jrobinson@afilias.info> *Cc:* Mathieu Weill <mathieu.weill@afnic.fr> <mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net> <thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> <leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org> <grace.abuhamad@icann.org>; acct-staff@icann.org *Subject:* CCWG-ACCT Request for Guidance on PTI - IRP
*Sent on behalf of CCWG-Accountability Co-Chairs*
Dear Lise, Dear Jonathan,
This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.:
1. Provide direct access to IRP for PTI action or inaction;
2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP.
We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated.
We look forward to your guidance.
Thank you
Best regards
Mathieu, Thomas, León
_______________________________________________
CWG-Stewardship mailing list
CWG-Stewardship@icann.org
https://mm.icann.org/mailman/listinfo/cwg-stewardship
--
Matthew Shears | Director, Global Internet Policy & Human Rights Project
Center for Democracy & Technology | cdt.org
E: mshears@cdt.org | T: +44.771.247.2987
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See notes inline in red J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Tuesday, January 26, 2016 at 9:28 AM To: Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Request for Proposal (for new IFO). On Tue, Jan 26, 2016 at 9:27 AM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Good feedback Greg. What do you mean by RfP in the parenthetical after Special IFR? Chuck From: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Sent: Monday, January 25, 2016 11:36 PM To: Gomes, Chuck Cc: Martin Boyle; Matthew Shears; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Martin and Chuck, Please allow me to add my 2 cents below. Greg On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Thanks for responding Martin. Please see my responses below. Chuck From: Martin Boyle [mailto:Martin.Boyle@nominet.uk<mailto:Martin.Boyle@nominet.uk>] Sent: Monday, January 25, 2016 7:41 PM To: Gomes, Chuck; Matthew Shears; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 For the gTLDs, I’m afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I’ll get there one day… On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the “bylaw test,” an IRP against ICANN would seem to be appropriate. But there might be other reasons – community objections, or GAC opposition or even failure to meet the criteria. So wouldn’t “might be applicable” be correct here? [Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy. This does not seem like a "PTI" issue. Rather this is an ICANN issue. So it is not really relevant to this question (although it's an interesting question). Now if ICANN approved the application and entered into a registry agreement, but PTI refused to delegate, then it would be a PTI problem, and the applicant could try to resolve this through CSC or through ICANN's enforcement of its contract with PTI. If CSC does not succeed, what is the end of the line for resolving a performance problem? Is it an IRP, and is the other party in the IRP PTI or ICANN? ICANN’s agreement with gTLD registry operators includes a commercial arbitration decision. It would seem to be a relatively simple thing to expand that provision to cover any PTI performance issue once a registry agreement is in place. Indeed, that seems to me to be the simplest way forward. Unfortunately, it does not address ccTLD issues. On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I’m with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more “resolution-based” CSC to the more legalistic IRP. [Chuck Gomes] No argument here. Simple answer (expand commercial arbitration provision in Registry Agreement to cover) for gTLDs. Wont work for ccTLDs As with the above issue, if CSC cannot resolve the issue, the next step after that should be an IRP (but not based on ICANN violating a bylaw; rather it should be based on PTI's failure to do what is required of it). A special IFR (and possibly an RfP) based on a single failure to delegate seems like overkill to me. I do agree that the IRP should not be invoked until the CSC route has run its course. And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult. For 3: this would seem to me to be a CSC issue – that’s what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract). [Chuck Gomes] What if CSC cannot resolve the problem? For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days). [Chuck Gomes] Agreed. Imagine PTI decides it wants to impose a contract on all its “customers” (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum. [Chuck Gomes] Agreed again. Happy to hear thoughts. Martin From:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: 25 January 2016 13:50 To: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_cwg-2Dstewardship&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=OG7nhfdINcEkUOkXgEQmneQj-bjtPMrJvkWls5quwGk&s=LaIG5C6f6Qnc650K4SFHqrz8OHUMf1y0_NKsr6j2qB8&e=> -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__cdt.org&d=CwMFaQ&c=MOptN...> E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987<tel:%2B44.771.247.2987> CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner<https://urldefense.proofpoint.com/v2/url?u=http-3A__cdt.org_annual-2Ddinner&...>. 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I agree with Becky that contractual arbitration may solve the problem for gTLDs, especially if the arbitration is binding. Chuck From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Tuesday, January 26, 2016 10:10 AM To: Greg Shatan; Gomes, Chuck Cc: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 See notes inline in red J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Tuesday, January 26, 2016 at 9:28 AM To: Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Request for Proposal (for new IFO). On Tue, Jan 26, 2016 at 9:27 AM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Good feedback Greg. What do you mean by RfP in the parenthetical after Special IFR? Chuck From: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Sent: Monday, January 25, 2016 11:36 PM To: Gomes, Chuck Cc: Martin Boyle; Matthew Shears; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Martin and Chuck, Please allow me to add my 2 cents below. Greg On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Thanks for responding Martin. Please see my responses below. Chuck From: Martin Boyle [mailto:Martin.Boyle@nominet.uk<mailto:Martin.Boyle@nominet.uk>] Sent: Monday, January 25, 2016 7:41 PM To: Gomes, Chuck; Matthew Shears; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 For the gTLDs, I’m afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I’ll get there one day… On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the “bylaw test,” an IRP against ICANN would seem to be appropriate. But there might be other reasons – community objections, or GAC opposition or even failure to meet the criteria. So wouldn’t “might be applicable” be correct here? [Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy. This does not seem like a "PTI" issue. Rather this is an ICANN issue. So it is not really relevant to this question (although it's an interesting question). Now if ICANN approved the application and entered into a registry agreement, but PTI refused to delegate, then it would be a PTI problem, and the applicant could try to resolve this through CSC or through ICANN's enforcement of its contract with PTI. If CSC does not succeed, what is the end of the line for resolving a performance problem? Is it an IRP, and is the other party in the IRP PTI or ICANN? ICANN’s agreement with gTLD registry operators includes a commercial arbitration decision. It would seem to be a relatively simple thing to expand that provision to cover any PTI performance issue once a registry agreement is in place. Indeed, that seems to me to be the simplest way forward. Unfortunately, it does not address ccTLD issues. On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I’m with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more “resolution-based” CSC to the more legalistic IRP. [Chuck Gomes] No argument here. Simple answer (expand commercial arbitration provision in Registry Agreement to cover) for gTLDs. Wont work for ccTLDs As with the above issue, if CSC cannot resolve the issue, the next step after that should be an IRP (but not based on ICANN violating a bylaw; rather it should be based on PTI's failure to do what is required of it). A special IFR (and possibly an RfP) based on a single failure to delegate seems like overkill to me. I do agree that the IRP should not be invoked until the CSC route has run its course. And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult. For 3: this would seem to me to be a CSC issue – that’s what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract). [Chuck Gomes] What if CSC cannot resolve the problem? For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days). [Chuck Gomes] Agreed. Imagine PTI decides it wants to impose a contract on all its “customers” (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum. [Chuck Gomes] Agreed again. Happy to hear thoughts. Martin From:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: 25 January 2016 13:50 To: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_cwg-2Dstewardship&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=OG7nhfdINcEkUOkXgEQmneQj-bjtPMrJvkWls5quwGk&s=LaIG5C6f6Qnc650K4SFHqrz8OHUMf1y0_NKsr6j2qB8&e=> -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__cdt.org&d=CwMFaQ&c=MOptN...> E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987<tel:%2B44.771.247.2987> CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner<https://urldefense.proofpoint.com/v2/url?u=http-3A__cdt.org_annual-2Ddinner&...>. 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Thanks both: very helpful. May I summarise for the different cases Chuck helpfully identified? 1. A gTLD is not delegated as requested by a registry operator without appropriate justification: I think that we all agree that the gTLD registry request for a delegation is an issue directly within ICANN’s responsibility and so action (IRP) would be correctly with ICANN for any failure to meet bylaws. There might be a case where ICANN had requested PTI to take action, but that PTI failed to carry out. A bylaw obligation on ICANN to enforce its contract with the IANA functions operator would seem appropriate here, and would probably be more appropriate than escalation via the CSC. There may be cases where it would be considered better to escalate via the CSC (there was some structural problem, for example). In this case the “end of the line” would be via the RySG and/or ccNSO leading to a decision to carry out a special IFR. 2. Modification to a zone file record for a gTLD [or ccTLD] is not made without proper justification: I’m not sure I’d agree with Greg on using the IRP against PTI. We already have two options: requiring ICANN to enforce its contract or escalation via CSC. Given that there has not been “proper justification” the former would seem to me to be most appropriate. If there is doubt on policy grounds, the CSC might be better as that could ask the GNSO [or ccNSO] to sort. I agree with Greg that taking an isolated incident to an IFR could appear to be overkill (although refusal to correct without explanation would seem to me to be pretty serious!), but in this case the IRP route would seem to me to be relevant. 3. SLEs are not met after applicable procedures are followed: escalation via CSC and through an IFR (although I would expect ICANN to be actively working with its affiliate to correct the deficiency). In the discussions in DT-C, we did note that there might be work between CSC and PTI (or successor) to identify why SLEs had not been met and how to address this – it might be that an SLE was too onerous or perhaps not a relevant measure, in which case there might need to be further consideration of the setting. It might be that additional resources are needed, in which case serious consideration needs to be given to remedial action. I noted that there could be another issue – that PTI was trying to force additional requirements on the registry (membership of the ccNSO, signing a contract…) that were not agreed policy: in this case (which might also apply to 2. above), the IRP is the right approach. So summarising my summary, the two options are sufficient: i. A bylaw obliging ICANN to enforce its contract with the IANA functions operator (and an IRP is available if it should not do this) ii. Issues where PTI is ignoring agreed policy or making up its own can be addressed via the IRP with ICANN or via the ICANN bylaw to enforce its contract iii. Performance issues can be addressed via the CSC (systemic) or via an IRP (isolated incident) Is that right? Martin From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: 26 January 2016 04:36 To: Gomes, Chuck <cgomes@verisign.com> Cc: Martin Boyle <Martin.Boyle@nominet.uk>; Matthew Shears <mshears@cdt.org>; jrobinson@afilias.info; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Martin and Chuck, Please allow me to add my 2 cents below. Greg On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Thanks for responding Martin. Please see my responses below. Chuck From: Martin Boyle [mailto:Martin.Boyle@nominet.uk<mailto:Martin.Boyle@nominet.uk>] Sent: Monday, January 25, 2016 7:41 PM To: Gomes, Chuck; Matthew Shears; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 For the gTLDs, I’m afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I’ll get there one day… On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the “bylaw test,” an IRP against ICANN would seem to be appropriate. But there might be other reasons – community objections, or GAC opposition or even failure to meet the criteria. So wouldn’t “might be applicable” be correct here? [Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy. This does not seem like a "PTI" issue. Rather this is an ICANN issue. So it is not really relevant to this question (although it's an interesting question). Now if ICANN approved the application and entered into a registry agreement, but PTI refused to delegate, then it would be a PTI problem, and the applicant could try to resolve this through CSC or through ICANN's enforcement of its contract with PTI. If CSC does not succeed, what is the end of the line for resolving a performance problem? Is it an IRP, and is the other party in the IRP PTI or ICANN? On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I’m with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more “resolution-based” CSC to the more legalistic IRP. [Chuck Gomes] No argument here. As with the above issue, if CSC cannot resolve the issue, the next step after that should be an IRP (but not based on ICANN violating a bylaw; rather it should be based on PTI's failure to do what is required of it). A special IFR (and possibly an RfP) based on a single failure to delegate seems like overkill to me. I do agree that the IRP should not be invoked until the CSC route has run its course. And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult. For 3: this would seem to me to be a CSC issue – that’s what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract). [Chuck Gomes] What if CSC cannot resolve the problem? For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days). [Chuck Gomes] Agreed. Imagine PTI decides it wants to impose a contract on all its “customers” (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum. [Chuck Gomes] Agreed again. Happy to hear thoughts. Martin From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: 25 January 2016 13:50 To: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org<http://cdt.org> E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987<tel:%2B44.771.247.2987> CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner<http://cdt.org/annual-dinner>. [https://ipmcdn.avast.com/images/logo-avast-v1.png]<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=emailclient> This email has been sent from a virus-free computer protected by Avast. www.avast.com<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaig...> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
I think your summary is quite good Martin. Chuck From: Martin Boyle [mailto:Martin.Boyle@nominet.uk] Sent: Tuesday, January 26, 2016 10:17 AM To: Greg Shatan; Gomes, Chuck Cc: Matthew Shears; jrobinson@afilias.info; cwg-stewardship@icann.org Subject: RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Thanks both: very helpful. May I summarise for the different cases Chuck helpfully identified? 1. A gTLD is not delegated as requested by a registry operator without appropriate justification: I think that we all agree that the gTLD registry request for a delegation is an issue directly within ICANN’s responsibility and so action (IRP) would be correctly with ICANN for any failure to meet bylaws. There might be a case where ICANN had requested PTI to take action, but that PTI failed to carry out. A bylaw obligation on ICANN to enforce its contract with the IANA functions operator would seem appropriate here, and would probably be more appropriate than escalation via the CSC. There may be cases where it would be considered better to escalate via the CSC (there was some structural problem, for example). In this case the “end of the line” would be via the RySG and/or ccNSO leading to a decision to carry out a special IFR. 2. Modification to a zone file record for a gTLD [or ccTLD] is not made without proper justification: I’m not sure I’d agree with Greg on using the IRP against PTI. We already have two options: requiring ICANN to enforce its contract or escalation via CSC. Given that there has not been “proper justification” the former would seem to me to be most appropriate. If there is doubt on policy grounds, the CSC might be better as that could ask the GNSO [or ccNSO] to sort. I agree with Greg that taking an isolated incident to an IFR could appear to be overkill (although refusal to correct without explanation would seem to me to be pretty serious!), but in this case the IRP route would seem to me to be relevant. 3. SLEs are not met after applicable procedures are followed: escalation via CSC and through an IFR (although I would expect ICANN to be actively working with its affiliate to correct the deficiency). In the discussions in DT-C, we did note that there might be work between CSC and PTI (or successor) to identify why SLEs had not been met and how to address this – it might be that an SLE was too onerous or perhaps not a relevant measure, in which case there might need to be further consideration of the setting. It might be that additional resources are needed, in which case serious consideration needs to be given to remedial action. I noted that there could be another issue – that PTI was trying to force additional requirements on the registry (membership of the ccNSO, signing a contract…) that were not agreed policy: in this case (which might also apply to 2. above), the IRP is the right approach. So summarising my summary, the two options are sufficient: i. A bylaw obliging ICANN to enforce its contract with the IANA functions operator (and an IRP is available if it should not do this) ii. Issues where PTI is ignoring agreed policy or making up its own can be addressed via the IRP with ICANN or via the ICANN bylaw to enforce its contract iii. Performance issues can be addressed via the CSC (systemic) or via an IRP (isolated incident) Is that right? Martin From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: 26 January 2016 04:36 To: Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> Cc: Martin Boyle <Martin.Boyle@nominet.uk<mailto:Martin.Boyle@nominet.uk>>; Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Martin and Chuck, Please allow me to add my 2 cents below. Greg On Mon, Jan 25, 2016 at 8:03 PM, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> wrote: Thanks for responding Martin. Please see my responses below. Chuck From: Martin Boyle [mailto:Martin.Boyle@nominet.uk<mailto:Martin.Boyle@nominet.uk>] Sent: Monday, January 25, 2016 7:41 PM To: Gomes, Chuck; Matthew Shears; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: RE: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 For the gTLDs, I’m afraid I still do not properly understand where fundamental authority lies, so please bear with me chuck: I’ll get there one day… On 1, the {putative] registry operator requests a delegation. I assume that it would be for ICANN to agree to grant and to show this by signing a contract. If it refused to for reasons that failed the “bylaw test,” an IRP against ICANN would seem to be appropriate. But there might be other reasons – community objections, or GAC opposition or even failure to meet the criteria. So wouldn’t “might be applicable” be correct here? [Chuck Gomes] It depends. Are the community objections or GAC opposition in line with approved policy? For a registry appeal to be effective, it should be based on approved policy. And community objections or GAC opposition should also be consistent with approved policy. This does not seem like a "PTI" issue. Rather this is an ICANN issue. So it is not really relevant to this question (although it's an interesting question). Now if ICANN approved the application and entered into a registry agreement, but PTI refused to delegate, then it would be a PTI problem, and the applicant could try to resolve this through CSC or through ICANN's enforcement of its contract with PTI. If CSC does not succeed, what is the end of the line for resolving a performance problem? Is it an IRP, and is the other party in the IRP PTI or ICANN? On 2: I guess this would be the same for a ccTLD as for a gTLD. This would appear to fail PTI (or future IANA functions operator) obligations to ICANN under its contract. I think I’m with Becky on this: a bylaw requirement on ICANN to enforce its contract with PTI would seem to be the simplest approach and an IRP could then challenge ICANN for failure. But is there a more direct approach here: this would appear to be likely to fail one or more of the SLEs. It should be reported to the CSC, which (if there is refusal to correct) would escalate to RySG and/or ccNSO which would then decide on further action (a special IFR which could then lead to a RfP). I have a certain antipathy to parallel paths and would certainly prefer the more “resolution-based” CSC to the more legalistic IRP. [Chuck Gomes] No argument here. As with the above issue, if CSC cannot resolve the issue, the next step after that should be an IRP (but not based on ICANN violating a bylaw; rather it should be based on PTI's failure to do what is required of it). A special IFR (and possibly an RfP) based on a single failure to delegate seems like overkill to me. I do agree that the IRP should not be invoked until the CSC route has run its course. And, in the case of ccTLDs, judging whether there is justification to reject (or simply delay) might be difficult. For 3: this would seem to me to be a CSC issue – that’s what they are there for, complete with their own processes to resolve the problem. I guess that an obligation to enforce the contract would make it easier for the CSC to guarantee access to ICANN should PTI remain obdurate (and that might be particularly relevant in a post PTI world, should ICANN have to rebid the contract). [Chuck Gomes] What if CSC cannot resolve the problem? For me the fundamental reason why we might want to invoke an IRP would be that PTI is ignoring agreed policy (or seeking to impose its own ideas, as ICANN did in the early days). [Chuck Gomes] Agreed. Imagine PTI decides it wants to impose a contract on all its “customers” (where few ccTLDs have contracts and where (if I understand right) gTLDs have their authority from the contract they sign with ICANN. That TLDs denied service unless they accept a condition that is not in policy (and therefore should be in breach of its contract with ICANN) should have the right to appeal through the IRP would seem to me to be reasonable use of an IRP. Hanging around waiting for the ccNSO & GNSO to initiate a special IFR and then trigger remedial action and/or separation for an attempt at extension of power by PTI would seem to me possible, but not optimum. [Chuck Gomes] Agreed again. Happy to hear thoughts. Martin From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: 25 January 2016 13:50 To: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>>; jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Let me give a few examples where I think that the IRP would be applicable: 1. A gTLD is not delegated as requested by a registry operator without appropriate justification. 2. Modification to a zone file record for a gTLD is not made without proper justification. 3. SLEs are not met after applicable procedures are followed. I think that we have recommended processes that would hopefully solve problems like the above well before an IRP would be needed, but it those processes do not work in a timely manner, then an IRP would provide an objective and well-defined option for an appeal. I think the affected registry operator, the RySG or the GNSO should all have standing to use the IRP in cases like the above if needed. The RySG in its comments over the history of the CWG Stewardship has repeatedly emphasized the need for registry operators to be able to appeal IANA decisions that they believe are contrary to policy. I suspect that others could come up with other examples. Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Matthew Shears Sent: Monday, January 25, 2016 8:14 AM To: jrobinson@afilias.info<mailto:jrobinson@afilias.info>; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] CCWG-ACCT Request for Guidance on PTI - IRP - Please respond by 23h59 UTC Monday 25 January 2016 Would it be useful to try and list the possible situations where recourse to an appeals mechanism would be used? This might give us a better sense of what type of mechanism would be suited and whether or not the IRP would be appropriate/adequate? Matthew On 22/01/2016 12:33, Jonathan Robinson wrote: All, We have received a direct request (see below) from the CCWG Accountability Co-Chairs for further guidance with respect to the application of the IRP to the actions (or inactions) of PTI. Moreover, we have had input from Sidley via the Client Committee as follows: “Sidley spoke with Becky Burr from CCWG today regarding the CWG dependency for an IRP process. Based on the call, it appears that the open question for CWG is whether the CWG dependency is adequately met with an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) – or whether in addition to such an ICANN bylaw, a separate process is also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues. If the latter is required, then in order for CCWG to create such a process, it would need input from CWG on what the standard of review should be for those types of proceedings and what the type of process would be – for example, would non-binding mediation be sufficient to address a direct customer issue or would binding arbitration be required? By clarifying this point, CCWG will be better positioned to ensure that the CWG dependency is being met in the CCWG proposal.” So the essential question is: A. Is an ICANN bylaw provision that allows for an IRP if ICANN fails to enforce the contract with PTI (for example, due to a material performance breach by PTI that is not cured) sufficient? OR B. In addition to such an ICANN bylaw, is a separate process also required that would give direct customers a right to mediation or arbitration to address SLAs or other service issues? If B above, what type of process is necessary? As discussed in our CWG meeting yesterday, it will be particularly helpful if when responding to the above, you provide a rationale for your response. In addition, if possible, please make reference to (and be consistent with) the prior work of this CWG Stewardship (such as our proposal in response to the RFP from the ICG). Given that the request from the CCWG Co-Chairs indicates their need to close this item by 28 January, we need to discuss this soon. Accordingly, we request that you provide input ASAP and, in any event, by 23h59 UTC Monday 25 January 2016. Thank-you, Jonathan & Lise Co-chairs, CWG Stewardship From: Alice Jansen [mailto:alice.jansen@icann.org] Sent: 21 January 2016 17:05 To: Lise Fuhr <Fuhr@etno.eu><mailto:Fuhr@etno.eu>; Jonathan Robinson <jrobinson@afilias.info><mailto:jrobinson@afilias.info> Cc: Mathieu Weill <mathieu.weill@afnic.fr><mailto:mathieu.weill@afnic.fr>; Thomas Rickert <thomas@rickert.net><mailto:thomas@rickert.net>; León Felipe Sánchez Ambía <leonfelipe@sanchez.mx><mailto:leonfelipe@sanchez.mx>; Grace Abuhamad <grace.abuhamad@icann.org><mailto:grace.abuhamad@icann.org>; acct-staff@icann.org<mailto:acct-staff@icann.org> Subject: CCWG-ACCT Request for Guidance on PTI - IRP Sent on behalf of CCWG-Accountability Co-Chairs Dear Lise, Dear Jonathan, This is to inform you that further to our call #79, the CCWG-ACCT seeks the CWG-Stewardship’s guidance on the two proposed approaches that were suggested to address the dependency that relates to PTI compliance through the Independent Review Process (IRP) i.e.: 1. Provide direct access to IRP for PTI action or inaction; 2. Oblige ICANN in Bylaws to ensure PTI compliance, in which case failure to do is covered by IRP. We are currently in the final stages of discussion to issue our supplemental report and would need to close this item by 28 January. Any prompt feedback you could send us would be much appreciated. We look forward to your guidance. Thank you Best regards Mathieu, Thomas, León _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org<http://cdt.org> E: mshears@cdt.org<mailto:mshears@cdt.org> | T: +44.771.247.2987<tel:%2B44.771.247.2987> CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner<http://cdt.org/annual-dinner>. [https://ipmcdn.avast.com/images/logo-avast-v1.png]<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=emailclient> This email has been sent from a virus-free computer protected by Avast. www.avast.com<https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaig...> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
participants (8)
-
Avri Doria -
Burr, Becky -
Gomes, Chuck -
Greg Shatan -
Jonathan Robinson -
Martin Boyle -
Matthew Shears -
Seun Ojedeji